Could you appoint me as an attorney to manage my mother’s affairs?

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At Emmersons Solicitors we are often approached by people who would like to become an attorneyon behalf of their parent or partner. This can be as a result of a medical crisis or because social services have become involved with an elderly person.

However, we always have to advise that it is the person who is in difficulty (the donor) who willbe our client. In the first instance we need to establish whether or not they are capable of giving us instructions. At this stage the donor may be in hospital, in a care home or simply unable to make the journey to our office. If we are advised that the problem is early dementia, or mental incapacity because of a recent stroke, then we would seek the opinion of the donor’s doctor regarding their Mental Capacity to instruct us.

I have been to visit clients in care homes who seemed to be incapable of giving me instructions
and who had difficulty in understanding why I had visited them. However, upon their GP completing
a Mental Capacity Checklist it has transpired that they do have capacity. It may be that they were
very tired or dehydrated during my first visit.

As members of Solicitors For The Elderly Emmersons Solicitors always follow their guidance in determining capacity. This is very important, not only to protect our clients, but also would-be-attorneys from accusations of fraud or duress.We keep detailed notes of meetings with clients in case a family member should try to challenge a decision.

We find it is better if all relevant family members discuss matters together before we meet with a client to draw up the documents. In most cases there are one or two family members or close friends who support a client. It is often better if they can be present during at least part of our meeting. This can make a client feel more at ease.

As the attorney(s) will be taking on a lot of responsibility it is better if they and the donor canreach decisions together. Sometimes families have left it too late and it is impossible for their relative to give instructions. If this happens it may be necessary to apply to the Court of Protection to manage the patient’s affairs.

This would happen if a house had to be sold or an agreement with a care home had to be signed to pay fees. Without legal standing no one has the right to sign documents agreeing to use a patient’s money. The Court of Protection procedure is far more cumbersome and expensive than the Lasting Power of Attorney route. The Court has the right to interview the person acting (the Deputy).

Sometimes the interviews can take up to three hours; the court needs to be satisfied that the deputy is not abusing their position. To avoid all of the above the best course of action is to think about appointing an attorney(s) now.

This will allow you to make decisions about your future whilst you are still able to do so. If any family member has the early signs of dementia, or has had a stroke, you should seek help immediately.

www.emmersons-solicitors.co.uk

01912846989

 

If you haven't made your will yet, here are some good reasons for doing so

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• Many people now cohabit instead of marrying, including same sex couples. They think that they will be provided for if their partner dies. Without a will your next of kin may inherit everything instead of your partner.

• Do you have children from more than one relationship? If so you will need to specify  how much of your estate they are to inherit and why.

At Emmersons Solicitors we have designed a comprehensive questionnaire covering a range of issues that you should consider when making a will. We can also advise on the best way to reduce the potential for care home fees. Our aim is to ensure that your wishes are carried out without anyone being able to challenge your will. It could cost thousands of pounds and a lot of heartache if a will is challenged.

We also deal with Powers of Attorney and Contested Estates.

0191 2846989

Co-Operative Funeral Services on Channel 4's Despatches

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As a solicitor dealing with probate work I have often been shocked when I see funeral bills from the Co-op. When compared to independant funeral directors they seem to be nearly double the price. All was explained when I watched Despatches last night. Their undercover reporter showed the public the hardline selling tactics employed by the Co-op.

This links to the fact that some families who were using Co-operative funeral services were hararrssed by the Co-op into using their legal teams for the probate work. I have heard about one family who were contacted four times in the two weeks after the death of their relative. The calls were to pursuade them that they should use Co-operative legal services. This is shocking behaviour.

 My advice would be to use your local funeral director. In Newcastle upon Tyne I have had dealings with a very nice firm in Wideopen called Duckworth Funeral Directors. They were nearly half the price of the Co-Op. I am not on commission I just feel strongly that people ought to be aware of what is going on.

 Jacqueline Emmerson

Of course the house is insured...what could go wrong!!

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Jacqueline Emmerson, Senior Partner at Emmersons delivers a timely warning for Executors of a will-and to others with responsibility for someone else's property.

As a solicitor dealing with Probate and Lasting  Powers of Attorney I have noticed that

Increasingly  properties are not insured. This can of  course lead to disastrous consequences.

 In one case recently, a man had died and his son  asked me to deal with the probate in respect of

 the estate. As part of my usual enquiries I wanted  to know with whom the deceased’s house

 was insured. After searching through mountains  of paperwork my client came to the conclusion

 that the property was uninsured.

He decided that as it was in a fairly safe area and that as the contents of the property were

of little value it was pointless paying for expensive insurance. Unfortunately there was

then a leak from the property which caused considerable damage to

 the neighbouring house.

Of course the first thing that the neighbour wanted to know was who

 was insuring the empty property because he  wanted to make a claim.

 In another case, a client was managing a property  on behalf of an elderly relative who was living

 in a care home. The property needed tidying up  before it was placed on the market for sale. We

 did discuss the issue of insurance. However, as  empty property insurance is quite expensive and

 as this property was to be placed on the market  within a month my client decided not to insure

 the same. The day before the property went to  auction vandals started a fire and the roof and

 walls suffered serious damage!

If you are managing a property on behalf of an elderly relative, especially if you are their

Attorney, then you must manage it with all due diligence. In the two cases above consideration

was given to insuring the properties. The clients in question made their decisions having weighed

up all relevant factors. Neither had foreseen the consequences that ensued.

 

"You should deal with house insurance on an urgent basis if you are dealing with a probate or if the owner has had to go into a home."

Many insurance companies will extend existing insurance for a number of months as long as the

property is inspected on a regular basis and all water supplies are switched off. It can be more

difficult to obtain insurance when there has been none. Some companies insist on window locks

being fitted to all downstairs windows and five lever mortice locks on doors. Many well-known

insurers will not deal with empty property insurance. We have managed to find some specialist

brokers who will offer this service though for some reason will not deal with our clients

directly. Instead they ask us to deal with them on behalf of our clients.

 If you have insurance please make sure that you  print off your policy and keep it with your copy

 will. It is often difficult to find out which policies  a deceased person, or someone with a mental

 incapacity has if they bought them online. If you  are helping an elderly relative please make sure

 that their property is insured.

 A related topic is the matter of door keys. If someone has recently died or had to go into a

 home you should consider changing the locks  to their property as a matter of urgency. If you

 are an executor of an estate or an Attorney for  someone then you have a responsibility either to

 the beneficiaries or the owner of the property  to protect their interest.

   

It’s those January blues again and Divorce is "very popular"!

At the start of January Tim dragged himself out of bed to go back to work after the Christmas break. He had not enjoyed the holiday period as he and his wife Sally had spent the entire time arguing. Just before he left for work Sally said that she needed to speak to him. What she said next came as a shock. She no longer loved him, she had found someone else and she wanted a divorce. She also said that he was to leave the house as soon as possible but that he could see the children on a regular basis. Reeling from this news Tim arrived at Emmersons solicitors for advice.



Tim was told that he had as much right to live in the matrimonial home as Sally. They should decide whether the house should be sold and the proceeds split between them (not necessarily in equal shares). Alternatively one of them could buy out the other’s share.

Tim was advised not to move out until these issues were sorted out. Things could become very difficult for him if Sally’s new partner decided to move in before all financial matters were settled! As far as the children were concerned, it was established that Tim had been a very hands on Dad. He was used to caring for the children when Sally was at work. He was used to taking them to school. There was no reason why Sally should decide that she should be the main carer.


Tim was asked to start collecting all of his financial documentation. This included details of his pension, savings and salary and the value of the matrimonial home. Sally’s solicitor would provide all of her financial documents. Then an offer could be put forward to settle matters.


Emmersons were able to liase with a mortgage advisor with Tim’s authority. Basic details were given, the idea being to find out how much by way of a new mortgage Tim could raise either to buy out Sally or to purchase a new home for himself.


Armed with this knowledge Tim advised Sally that he would not be moving out and that he would continue to take the children to school every day as he had always done. Sally was so desperate to be with her new partner that she moved out. She was prepared to allow Tim to buy her out. Whilst this is not a happy ending story it gives a flavour of how people can be helped with the right advice.

January is the busiest time for divorce lawyers. Christmas can be a very stressful time for couples who have been struggling to get along. They often find themselves thrown together for nearly two weeks and at the end of that time one party often feels that they can’t go on with the relationship. Anyone in this position should seek advice before making any rash decisions.

And don’t dismiss Relate as “not for me.” There are many out there who have lived to fight another day together.

What shall I give my children for Christmas?

How about a well thought out will, it could save them thousands of pounds in legal fees later.

Last week a couple came to my office to sign their wills. They had lived together for 27 years and Bob had in effect brought up Suzanne’s children. Those children had long since left home and had families of their own. Bob and Suzanne are not married and Bob doesn’t have any children of his own. After she had signed her will Suzanne asked me what would have happened if they had not made their wills. I explained that things could potentially have become very messy, especially if Suzanne were the first to die. Her adult children would naturally have assumed that they would inherit everything as next of kin. Bob on the other hand probably would have thought that everything was to come to him as Suzanne’s common law husband. The answer is that if Bob and Suzanne’s children could not agree on how much of the estate they would each take then Bob would have to try to prove that he had a financial dependency upon Suzanne and that she had failed to provide adequately for him. In this case the legal fees involved in sorting this out would have been nearly as much as Bob and Suzanne have in savings.  

OTHER ISSUES TO CONSIDER

1)      At what age should your children inherit your estate?

Unless your will states otherwise your children will inherit at 18. Will they be responsible enough to spend your money wisely or will your life’s accumulation of assets be spent on beer? Even if they are responsible is it possible that their suddenly devoted boyfriend or girlfriend will help them to spend all of your money?

2)      If you have young children should you appoint a guardian?

A guardian would be the person chosen by you to care for your children in the event of the death of you and your child’s other parent. Such a person must be consulted before you appoint them as it is a huge commitment to take on someone else’s child.

3)      Who should you appoint to be a trustee?

You should appoint two trustees or one firm of solicitors, especially if you own a house. In relation to your children your trustee’s job will be to look after their inheritance until they are old enough to receive it. I usually suggest that if you are choosing relatives or friends then they should not be a couple. You need to think of checks and balances. One of our clients, Bert, left money to his grandchildren which they would inherit when they were 18.  He appointed his two daughters as trustees. A very wise move as it turned out.  Sally had two daughters and at every turn suggested to her sister Paula (the second trustee) that the girls would love this or that. Apparently they would have loved a holiday to Florida accompanied by Sally and her new partner Mr Waster. Paula said no. They would have loved a new computer which Sally’s partner could also use in his new business. Paula said no. Eventually the girls each received their money at 18 just when they needed it for university.

Not the most exciting Christmas present I realise, but it’s bound to be of more use than a Barbie doll or a pair of Jimmy Choos!   

Jacqueline Emmerson

I’m far too young to make a will! by Jacqueline Emmerson

So thought Steve, one of my clients.  However, I received a call just after Christmas advising me of his death. As he was only 42 this was a shock.

His family wanted to know if he had made a will. I knew that he hadn’t as he was always very busy at work. This means that his estate will not be straightforward to sort out. You see Steve had children from his marriage which ended years ago. They live with their mother in a house still in the joint names of Steve and his ex wife. His ex wife will automatically become the sole owner of the house. This is not what Steve wanted. He always wanted his children to receive his half share of the house. If his ex wife ever re-marries there is the possibility that her new husband will inherit the house instead of the children.

 After his marriage ended Steve bought a new house in his sole name. He eventually met Ellen and she move in with him. They lived together for over two years, Ellen did not work and Steve looked after her financially. Ellen can now make a claim against Steve’s estate. His children will now have to negotiate with Ellen to see how much of his estate each of them will receive. If they can’t agree a settlement then they will have to ask the court to decide. This could cost them all thousands of pounds.

What is really sad about this case is the fact that Steve adored his kids and always used to say that he was building up his business to make sure that they would always be financially looked after.

So how could Steve have provided for his children in the way that he intended?

He should have severed the Joint Tenancy in respect of the property he owned with his ex wife.  This is a simple and very inexpensive process. Instead of his ex wife being left as the owner of the whole house she would have been deemed for inheritance purposes to have owned only half. Then Steve should have made a will setting out how much of his estate was to go to his children and how much to Ellen.

Two thirds of adults haven’t made a will, don’t be one of them!